[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE
FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE
CREATED THIS PROGRAM? (PART IV)
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HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
BORDER SECURITY, AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
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NOVEMBER 15, 2006
----------
Serial No. 109-157
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.govFOR
SPINE deg.
ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM:
ARE WE FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS
WHEN WE CREATED THIS PROGRAM? (PART IV)
ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE
FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE
CREATED THIS PROGRAM? (PART IV)
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
BORDER SECURITY, AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
NOVEMBER 15, 2006
__________
Serial No. 109-
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
30-840 WASHINGTON : 2007
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
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Subcommittee on Immigration, Border Security, and Claims
JOHN N. HOSTETTLER, Indiana, Chairman
STEVE KING, Iowa SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas HOWARD L. BERMAN, California
LAMAR SMITH, Texas ZOE LOFGREN, California
ELTON GALLEGLY, California LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia MAXINE WATERS, California
DANIEL E. LUNGREN, California MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
BOB INGLIS, South Carolina
DARRELL ISSA, California
George Fishman, Chief Counsel
Art Arthur, Counsel
Allison Beach, Counsel
Cindy Blackston, Professional Staff
Nolan Rappaport, Minority Counsel
C O N T E N T S
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NOVEMBER 15, 2006
OPENING STATEMENT
Page
The Honorable John N. Hostettler, a Representative in Congress
from the State of Indiana, and Chairman, Subcommittee on
Immigration, Border Security, and Claims....................... 1
The Honorable Sheila Jackson Lee, a Representative in Congress
from the State of Texas, and Ranking Member, Subcommittee on
Immigration, Border Security, and Claims....................... 4
WITNESSES
Mr. Laurence Fuortes, M.D., Professor, Department of Occupational
and Environmental Health, University of Iowa
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Mr. John Mauro, Project Manager, Dose Reconstruction Consulting
Services, Advisory Board on Radiation and Worker Health Under
EEOICPA, Sanford Cohen & Associates
Oral Testimony................................................. 13
Prepared Statement............................................. 15
Ms. Kathy Bates, Surviving Claimant Under the Energy Employees
Occupational Illness Compensation Program Act
Oral Testimony................................................. 24
Prepared Statement............................................. 26
Mr. Richard Miller, Senior Policy Analyst Government
Accountability Project
Oral Testimony................................................. 35
Prepared Statement............................................. 38
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable John N. Hostettler, a
Representative in Congress from the State of Indiana, and
Chairman, Subcommittee on Immigration, Border Security, and
Claims......................................................... 66
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Ranking
Member, Subcommittee on Immigration, Border Security, and
Claims......................................................... 79
Memorandum from Morton Rosenberg, Specialist in American Public
Law, American Law Division, Congressional Research Service..... 84
Prepared Statement of Robert Alvarez, Senior Scholar, Institute
for Public Studies............................................. 101
Office of Management and Budget Memorandum....................... 119
Prepared Statement of Paula Graham, Member, Advisory Board to the
Health Researchers of the University of Iowa, Department of
Energy......................................................... 127
Response to Post-Hearing Questions from Laurence Fuortes, M.D.,
Professor, Department of Occupational and Environmental Health,
University of Iowa............................................. 144
Response to Post-Hearing Questions from John Mauro, Project
Manager, Dose Reconstruction Consulting Services, Advisory
Board on Radiation and Worker Health Under EEOICPA, Sanford
Cohen & Associates............................................. 149
Response to Post-Hearing Questions from Kathy Bates, Surviving
Claimant Under the Energy Employees Occupational Illness
Compensation Program Act....................................... 159
Response to Post-Hearing Questions from Richard Miller, Senior
Policy Analyst Government Accountability Project............... 210
Prepared Statement of Sandra Wolff Baldridge..................... 217
Significant documents and communications related to the
Subcommittee's oversight of the Energy Employees Occupational
Illness Compensation Program Act............................... 220
ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE
FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE
CREATED THIS PROGRAM? (PART IV)
----------
WEDNESDAY, NOVEMBER 15, 2006
House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:09 p.m., in
Room 2141, Rayburn House Office Building, the Honorable John
Hostettler (Chairman of the Subcommittee) presiding.
Mr. Hostettler. The Subcommittee will come to order.
Today's hearing is the fourth in a series of oversight hearings
the Subcommittee has been holding on the Energy Employees
Occupational Illness Compensation Act, or EEOICPA. The point of
this hearing and the fifth hearing to follow in December is to
review what the Committee's oversight efforts have revealed as
weaknesses in the program, the status of any reforms made to
address those weaknesses and discussion of any emerging issues
that may need to be addressed in the next Congress.
Because of their complexity, the Subcommittee is compelled
to make an effort to create as much of a roadmap of a program
and its problems as possible for those who would provide future
oversight. The Judiciary Committee's oversight did not begin
with investigation on implementation of the OMB passback
options. This Committee has taken an active role in policing
its program from the start. And I sincerely hope that rigorous
oversight by this Committee will continue in the 110th Congress
and future Congresses until we can all say with confidence
that, yes, we are fulfilling the promise we made to these
veterans of the Cold War when we created this program.
I would have liked to have been able to say that already,
but the record created by these hearings tells us that it is
just not so.
Shortly after assuming the chairmanship of this Committee,
I sent a letter to the General Accounting Office asking that
they examine the key components of the program. That was May
2003. As time went on, the Subcommittee heard several
complaints on the way the program was functioning and the
behavior of officials involved in the program.
That prompted a November 2004 request to the Department of
Health and Human Services for extensive documents and
information concerning the functioning of the program, the
Advisory Board of Radiation and Worker Health, and that board's
audit contractor.
Subsequently, after the initial review of their submissions
a request was made for GAO to expand the scope of their review
of subtitle B, which they agreed to. During 2005, the Committee
sent letters to various agencies regarding concerns with
different actions taken with regard to the program.
One letter to the Attorney General concerned the use of
classified information to decide a claim under the program and
asserted that congressional intent was that transparency and
the processing of claims be an essential principle of this
program. A second letter concerned the removal of two board
members, a worker and a doctor. No resolution to either of
those concerns was forthcoming.
In the case of the request by Chairman Sensenbrenner that
the removed board members be offered reinstatement so that the
board would not lose their expertise and experience with the
program, the Committee received a one-sentence letter thanking
us for our comments.
On October 18, 2005 the White House announced the
appointment of three new board members, one of whom had major
conflicts of interest issues since a company he founded and
whose employees included immediate family members had been
contracted to do dose reconstructions for NIOSH. Only one new
worker representative was included in the new appointments.
When the OMB passback memo surfaced, the Subcommittee began
planning hearings. Those hearings were, at a minimum, to
include Department of Labor and the Office of Management and
Budget.
The Committee's invitation was met with resistance by DOL
and HHS. But they both eventually provided witnesses. That was
not the case with OMB. Administration officials suggested that
an exchange of letters between OMB and the Committee containing
appropriate assurances and stating good faith actions that
would be taken to assure the claimant community of the
Administration's rejection of the passback options would be a
more appropriate response than OMB testifying.
There were several exchanges of draft letters between OMB
and Committee staff as well as a meeting between myself and the
Administration to personally express the need for specific
actions and/or statements that OMB had to make in lieu of
testifying.
One of those actions was to either offer reappointment to
the board members removed without cause, or provide a plausible
explanation why they had been removed, while other less
qualified members who had made their support of DOE management
very clear, had been retained. When it became clear that action
was not--was nonnegotiable for the Committee, OMB took the
broad nonspecific letter of explanation with regard to the OMB
passback and used it as the basis for letters responding to
Senate and House Member offices. They refused to consider
reversing the actions of the Administration with regard to the
2 pro worker Advisory Board members.
During the first week of August 2006, NIOSH was notified by
the White House office of personnel that Wanda Munn and Roy
Dehart had been retired from the board effective immediately,
as part of the ongoing activity of rotating board members.
Dr. Dehart had filled one of the medical slots on the
advisory board, Ms. Munn, an engineer and strong supporter of
the DOE complex does not appear to have been qualified to fill
any of the statutorily required board slots, medical,
scientific or worker.
It was brought to the Subcommittee's attention that Ms.
Munn was unhappy with her retirement and hoped to utilize a
means to get back on the board. Amazingly on August 11, 2006,
NIOSH was notified by the White House that Dr. Dehart and Ms.
Munn were to be reappointed for another 3-year term. While Dr.
Dehart declined reappointment, Ms. Munn, not surprisingly,
accepted.
When the White House was asked why reappointment was so
quickly offered to an individual who didn't even meet the
statutory qualifications for serving on the board after the
request of the Chairman of the Judiciary Committee for the
reappointment of two qualified board members was ignored, the
Administration never provided an explanation.
The board currently has only two worker representatives and
a reappointed member who has stated her position that none of
these workers are sick because of their exposure to radiation.
Obviously, an impartial review of the validity of the
science used to determine whether to approve claims for
radiation exposure won't be forthcoming from that particular
board member.
I strongly encourage those who police this program in the
future to aggressively pursue balancing this board and
legislation to provide for a more transparent appointment
process appears to be the only real solution.
A February 22, 2006 letter requested that DOL's Employment
Standards Administration or ESA provide all documents related
to the 5 options outlined in the OMB passback prior to the
Subcommittee hearing on March 1, 2006. The Subcommittee
received a box of about 4,500 pieces of paper from DOL on March
17, 2006. None of them substantive information related to the
request.
After DOL complained that the request was overly broad, the
Subcommittee reduced its request of the documents of 25 key DOL
ESA staff. No further documents were received until the
beginning of July. No documents or communications were received
regarding the OMB passback, and no communications between Labor
and OMB were forthcoming.
The Committee was informed on July 21 that the office
within DOL that handles the EEOICPA claims indicated to the
Legislative Affairs Office that there was no need to provide
any of the communications with OMB because they constituted
internal budget negotiations--privileged documents not
available to anyone.
Labor was told by the Committee that ESA had misinformed
them.
In support of that position, the Subcommittee requested and
received a congressional research analysis of the
appropriateness of the document requests made to the Labor
Department, which makes it clear that no privilege could be
assigned to the documents in communications that were part of
the Committee's inquiry.
On the eve of a vote to authorize a subpoena to DOL, high
level assurances were made to the Committee to provide all but
a few documents to the Committee, and the rest were made
available in a reading room for Committee viewing.
HHS had withheld several binders and allowed all but one to
be reviewed by Committee staff.
It is the Committee's understanding that the binder
withheld contained HHS's communication with OMB regarding the
passback. So much resistance from these agencies fortifies the
argument that their actions would not bear well under scrutiny.
Those involved in this backroom manipulation of the program
have destroyed the Government credibility again.
This program was supposed to ensure workers that the deceit
was over and the Government was finally going to do right by
them. Those tasked with implementing the program have failed
that purpose miserably, and they need to be exposed for what
they have done.
I will be including a record of the Committee's
correspondence on our concerns in the hearing record as well as
other pertinent documents that provide a clear view of the
actions of those running this program.
Under oath, the OMB witness on July 20, 2006 rejected each
of these 5 options and assured us they were not pursuing any of
them. We received the same assurances under oath on March 1st,
2006, in DOL. Evidence included in both DOL and HHS-submitted
documents or included in the documents withheld and only
viewable to the Committee staff do not support those
statements, and the hostile attitude of those running this
program toward the claimants and their advocates gives me
little confidence that there is any sincere efforts to change
by these officials.
Obviously, the babysitting of these individuals must
continue and I encourage it wholeheartedly. Time is of the
essence for fulfilling our promise to this quickly aging
population of atomics weapons employees. Perhaps soon those who
run this program will do the right thing and take care of these
workers and their families competently and with an attitude of
respect that is clearly not present at this time.
At this time, the Chair recognizes the gentlelady from
Texas, Ms. Jackson Lee, for purposes of an opening statement.
Ms. Jackson Lee. Thank you, Mr. Chairman. Let me, first of
all, thank you for joining me in persisting on what I think is
a call for the restoring of the integrity of this program.
Thank you for joining me and insisting that the Federal
Government do the right thing. And thank you for your
leadership on this issue.
I echo and join the Chairman in announcing publicly that it
is my fear that the Energy Employees Occupational Illness
Compensation Program's integrity is in jeopardy.
Mr. Chairman, I want to indicate to you that over the
recess, I went to Texas City in Texas and saw the faces of
individuals who have been impacted by the failure of this
particular program to function.
I looked in the faces of elderly persons who asked--and
begged frankly--that we would come to their area and hear their
stories and find out that they are nothing but great patriots,
and good Americans, and they love their country, and they
entrusted their hopes and dreams for their families, for their
livelihood, and for their longevity to this great nation.
I think it is a besmirching of the commitment that we make
to Americans when they rise to the highest call, calling, and
that is to serve America, that we have found ourselves in this
quagmire.
So I join you in the level of frustration that your
accounting has generated. And I am hoping and I view and feel
that our collective effort before we end the 109th Congress,
will see fruition. And so I begin by thanking the witnesses for
being here. It looks like we are climbing up the rough side of
the mountain, but I do believe that we have a collective body
of interested Members of Congress who are willing to pursue the
Federal Government doing the right thing.
The Department of Energy and its predecessor, the Atomic
Energy Commission, have employed tens of thousands of workers
to develop, build and test nuclear weapons. The Energy
Employees Occupational Illness Compensation Program Act of 2000
provides compensation for workers who have contracted radiation
related cancers, beryllium disease or silicosis disease from
exposure to radiation at these work sites.
They may be eligible for a lump sum payment of $150,000 and
prospective medical benefits. In processing radiation-related
cancer claims, the National Institute for Occupational Safety
and Health is required to estimate a workers exposure to
radiation, which is referred to as a radiation dose.
Sometimes this is not possible. During the early years of
the nuclear weapons program, some of the workers were not
monitored for radiation exposure, and records have been lost.
We found these cases in similar situations of compensation
requests throughout the other history of the United States.
Remember, folks, we did not always have the Internet or the
computer. We didn't always have the Blackberry. People were
either writing things down or assuming that the immediate
supervisor knew the story.
And of course, we have not yet found the cure for aging and
loss of life through aging. And people have passed on who knew
the stories, companies have closed who had the information,
documents have been either lost, displaced or disposed of
because history has marched on.
The Act provides a remedy for cases in which it is not
feasible to estimate radiation doses. But it is clear that the
health of workers may have been in danger by radiation
exposure. They can petition to be designated as members of a
Special Exposure Cohort which provides an unrebuttable
assumption certain cancers are work related. Members of a
Special Exposure Cohort may be eligible for benefits if they
have 1 of 22 specified radio sensitive cancers, and they must
have worked as a covered facility for at least 1 year in a job
that exposed them to radiation.
I deviate for a moment and cite as an example Agent Orange,
recognizing that we first challenged the existence of Agent
Orange disease after Vietnam and after long studies and
determinations in lost records and misinformation, we have
discovered that that is a valid disease, or exposure that
Vietnam vets had and Mr. Chairman, while I was home in the
District again, a Vietnam vet who was in Thailand has now
raised the specter that that group was left out, and those
Agent Orange planes landed on those airfields, and he is, of
course, by his medical doctor, determined to be 100 percent
disabled, but yet paperwork and lack of designation has him as
a case that we have to pursue in front of the Veterans'
Affairs.
I use that as an example because this is what these cohorts
have been facing. In an internal passback memorandum from the
Office of Management and Budget to the Department of Labor, OMB
states that the Administration will convene a White House-led
interagency work group to develop options for administrative
procedures to contain the growth in the costs of the program,
cost over patriotism and the service of these patriots.
OMB states further that the discussions would include but
not be limited to a requirement for the Administration's
clearance, of Special Exposure Cohort determination, addressing
imbalances in the membership of the Advisory Board, requiring
an expedited review by outside experts of the Special Exposure
Cohort recommendations by NIOSH, requiring NIOSH to apply a
conflict of interest rules and constraints to the Advisory
Board's contractor, which we see by the Chairman's remarks,
that has not been done, and requiring that NIOSH demonstrate
that its site profiles and other dose reconstruction guidances
are balanced.
I am concerned that such cost cutting measures would
conflict with the Special Exposure Cohort review procedures
established by the Compensation Program Act and that it would
result in unwarranted denials of compensation applications.
Instead of cost-cutting measures, the Administration should
be considering whether measures are needed to increase the
number of applications that are granted. On average,
approximately 70 percent of the applications are denied.
We are not serious. We are playing at the game of
responding to the needs of the faces that I saw in Texas City,
Texas this past fall.
Government witnesses have testified that cost containment
is not a factor in deciding which claims to pay. But this has
not eliminated concern. The Subcommittee asked DOL to provide
all documents related to the 5 options outlining the OMB
passback. The Subcommittee received a box of about 4,500 pieces
of paper from DOL, but none of these documents provided the
necessary information.
When this was brought to DOL's attention, its response was
that the request was overly broad. The Subcommittee reduced its
requests to the documents of 25 key DOL ESA staff. But the
Government still would not cooperate fully. The debate reached
a point at which a subpoena was considered. Most documents were
made available to the Subcommittee, but the integrity of the
application process is still in doubt.
I have introduced a bill to address these problems. The
Energy Employees Occupational Illness Compensation Program
Improvement Act of 2006, H.R. 5840. Among other things, it
would shift the authority from making Advisory Board
appointments to the Congress. It would require HHS Secretary to
abide by the recommendations of the Advisory Board unless there
is a clear error. It would establish enforceable conflict of
interest requirements with respect to NIOSH's dose
reconstruction contractors.
Also, it would eliminate unfairness by making benefits
available to some subcontractor employees who worked at atomic
weapons employer facilities, but presently are not covered by
the Act.
I know that we want to do the right thing. I would imagine,
Mr. Chairman, if we interviewed individual members of the
Administration, I give them the benefit of the doubt, they
would know that they have not been completely forthright in
doing the right thing, and they would acknowledge that we have
been asking the important and hard questions, and our questions
need to be answered, documents need to be produced, and as
well, we need to move forward on a reconstructive program.
I would ask prospectively as my colleagues are listening
that we would begin to hold hearings on H.R. 5840, a field
hearing as well, but more importantly, that we move forward and
address the concerns of patriotic Americans.
Mr. Chairman, thank you again for your leadership and I
yield back.
Mr. Hostettler. I thank the gentlelady. At this time, I
will introduce members of our distinguished panel of witness.
Laurence Fuortes is professor of occupational and
environmental health at the college of public health at the
University of Iowa.
Dr. Fuortes received his B.S. In biophysics at Northern
Illinois University and his M.D. At the University of Illinois.
He has published dozens of article on a wide range of medical
subjects, though much of his research has focused on
occupational health hazards and the development of potential
policy solutions.
John Mauro is the project manager for Dose Reconstruction
Consulting Services for the Advisory Board on Radiation and
Worker Health under EEOICPA. He has personally performed eight
dose reconstruction reviews and directed 60 other reviews. Dr.
Mauro has appeared before the Advisory Board at every public
bimonthly meeting of the board and has presented and defended
the audit reports of the audit contractor, Sanford Cohen &
Associates.
He has served as the principal investigator for the
preparation of the environmental and safety analysis reports
for 10 commercial nuclear power plants.
Kathy Bates is a surviving claimant under the Energy
Employees Occupational Illness Compensation Program Act. She
attended the University of Tennessee and graduated with honors
in 1984 with a degree in computer science. She has 22 years of
experience as an information technology professional. Mrs.
Bates is married and has two children and she resides in
Knoxville, Tennessee.
Richard Miller is a senior policy analyst at the Government
Accountability Project. Mr. Miller has led that group's efforts
to reform EEOICPA as part of the fiscal year 20O5 Defense
Authorization Act.
Mr. Miller is an expert on the program, having been
actively involved in creating the original EEOICPA law. He has
testified before this panel on the OMB passback document on
containing the cost of EEOICPA.
In 2003, he appeared before the Senate Committee on Energy
and Natural Resources where he testified on the flawed
implementation of EEOICPA by the Department of Energy. He holds
a B.A. in industrial and labor economics from the University of
Massachusetts.
Lady and gentlemen, you will see that we have a time
system. We respectfully ask that you limit your oral statements
to 5 minutes or as close as possible to that.
Without objection, your entire written statement will be
made a part of the record.
Dr. Fuortes, you are recognized for 5 minutes for an
opening statement.
TESTIMONY OF LAURENCE FUORTES, M.D., PROFESSOR, DEPARTMENT OF
OCCUPATIONAL AND ENVIRONMENTAL HEALTH, UNIVERSITY OF IOWA
Dr. Fuortes. Thank you. I have been working with several
AEC DOE sites in Iowa for about 5 years and it has been one of
the most changing--life-changing experiences of my life. I have
been very affected by this work.
On behalf of these workers and the families of those who
are deceased, I would like to thank you very much for this
oversight of the policies in response to the health risks and
resultant diseases experienced by this workforce.
They labored under a weight of secrecy and uncertainty
regarding the health risks of nuclear weapons work. We owe
these workers a debt of gratitude and as you have suggested, a
fair and open system.
When this program began, the workers in Iowa said that
their Government was just waiting for them to die. And sadly
some of our actions appear to bear this out.
On a positive note, scores of workers' lives have been
saved by the early detection of cancers and other diseases
through the DOE medical screening process.
Unfortunately, the tone of the OMB memo that led to these
hearings is that some feel the risks to these early era workers
have been overstated. Worker protections may have been
interpreted as adequate in the early era, but they are clearly
not adequate by today's standards. This was prior to the
studies of Hiroshima and Nagasaki survivors and radium dial
painters and prior to decades of biological studies of
cancerous effects of radiation.
It was also prior to technologic advances in radiation
monitoring before the OSHA Act.
These workers are disadvantaged in the SEC anddose
reconstruction processes, by a lack of transparency and a lack
of access to expertise.
In the SEC process, the petitioners are asked to prove the
negative, something that cannot be proven. All the while, they
are not given access to the same data that NIOSH and its
contracts have. And the petitioners have to rely on a
cumbersome FOIA process to try to get dose information.
It took 3\1/2\ years just for the SEC rules to be written.
Meanwhile many of these elderly workers died. In the Iowa case
after the Advisory Board went on record in April of 2005
agreeing that accurate, defensible, and timely dose
reconstructions could not be performed, there was a flurry of
activity, which seemed to be designed to frustrate these
workers.
SEC and claimed decisions should not be based on financial
implications, but on a fair balanced scientific judgment. The
petitioners are further disadvantaged by the dense technical
aspects and jargon of health physics and typically are asked to
take, at face value, the dose calculations made by NIOSH
contractors.
The petitioners deserve a process independent of bias or
political pressure. The board must be scientifically based and
its judgments must be impartial and there must be a
representation of environmental and radioepidemiology
expertise.
The SEC process has also not addressed risks from residual
radiation. At the Ames lab, one worker described to us his
tasks in the 1960's of tearing out the exhaust ventilation
systems and the building materials of one of the most highly
contaminated areas. All of his co-workers are now deceased from
cancer. When we shared this information with the Ames
laboratory, their director and health and safety staff helped
us immediately to amend our SEC petition, submit it to NIOSH to
extend the period of coverage.
This issue of residual risk is pertinent in all of the DOE
sites probably that we are dealing with radionuclide
processing.
As regards the dose reconstruction claims processes, there
is a perceived problem of this being litigious which places
unfair burdens of proof on the claimants. Although the dose
reconstructions developed by NIOSH give the numerical
appearance of precision, the process is often not exact or
scientifically defensible.
Take, for example, an Iowa worker who received a
probability of causation of 48 percent for a radiogenic cancer
and imagine his disbelief when he amended his claim based on a
newly-diagnosed radiogenic cancer and the NIOSH recalculated
probability of causation is now 32 percent.
Despite the best intentions of claimant friendliness, this
DOE claims process operates disturbingly like a conventional
insurance claims process, functionally placing obstacles in the
claimants path. This claims process must also be made
transparent and subject to review and oversight.
I know of several cases of people whose claims were denied
based on faulty assumptions by the Department of Labor.
Examples include a Kansas City native from the Bendix plant
whose proof of employment came from the headquarters in New
Jersey. He was denied. Another employee whose proof of disease
came from a CT scan was denied because under the language of
the Act they required a CAT, CAT scan. Others denied because
diseases such as Polycythemia Rubra Vera were decided by the
claims examiners not being covered under the Act, where as, in
fact, they are. There are numerous such examples.
These workers are typically elderly and not well versed in
health, physics, medical or legal terminology, and they are
easily frustrated and dissuaded from pursuing valid claims.
Cases such as these, I mentioned, suggest a need of a
systematic review of denied claims and a change in policy from
placing the burden of proof entirely on claimants to a system
which claimants are assisted in identifying and locating
requisite information.
All of these workers who were exposed to radiation
Beryllium and related toxins in our atomic weapons industry
deserve no less than an equitable, just and open approach to
the evaluation of causality and compensation for work-related
disease. Thank you very much.
Mr. Hostettler. Thank you, Dr. Fuortes.
[The prepared statement of Dr. Laurence Fuortes follows:]
Prepared Statement of Dr. Laurence Fuortes
Honorable Members of the Subcommittee on Immigration, Border
Security and Claims, thank you for the opportunity to share with you my
perspectives on the Energy Employees Occupational Illness Compensation
Program Act (EEOICPA) and the Special Exposure Cohort process. My name
is Laurence Fuortes, I am a physician and Professor of Occupational and
Environmental Health and of Internal Medicine at the University of Iowa
(UI). For approximately five years, my staff and I have been working
with former Atomic Bomb assembly workers and more recently Uranium and
Thorium processing workers in Iowa and surrounding states. Through a
Department of Energy program, UI provides medical screening
examinations and medical care to former workers, and we have gotten to
know many of these workers quite well.
On behalf of these former Atomic Energy Commission and Energy
Department workers and the families of those no longer alive I thank
you for addressing questions of appropriate policy in response to
recognized health risks and disease experienced by this workforce.
These workers labored under a great weight of secrecy, as well as
significant uncertainty, in regards to health risks associated with
employment in the nuclear weapons industry. We owe these workers a
tremendous debt of gratitude for their patriotism, placing themselves
in harms way in defense of our country during both World War 2 and
subsequently during the Cold War.
One of the primary things I hope to convey at these hearings is a
sense of the effect of these programs on individuals as well as the
community. I have spent hours with grown women and men in tears as they
helped me identify those of their coworkers who are deceased. Without
the benefit of a funded scientific study, I would have to say that
anecdotally we are seeing a higher than expected rate of cancers and
lung disease in this population, (as compared to what I have
experienced in other medical screenings). These workers and their
families said at first that the government was only waiting for them to
die. Sadly the facts and history appeared to bear this out. The
impression among many workers and their families is that the workers
had been put at risk, made ill, and died as a result of their work, yet
the government was merely going to stall and deny. Throughout our and
other Former Worker Programs scores of former workers lives have
fortunately been saved as a result of early detection of cancers and
other conditions.
The approval of the SEC for the atomic weapons workers at the Iowa
Army Ammunition Plant has rekindled the faith and participation in
government.
To adequately understand the significance of these programs, it is
first necessary to understand that safe working conditions in the
earliest years of nuclear weapons production were severely lacking.
Worker protection in terms of radiation shielding and monitoring--
although state of the art for the time--was not adequate. Production
was the primary focus for the operating contractors. The Health and
Safety staff at these facilities used the best available knowledge and
directives from the AEC to address and minimize workers' health risks.
This was prior to the epidemiologic data that resulted from follow up
studies of Hiroshima and Nagasaki victims and the radium dial painters.
This was prior to decades of biological study which enlightened the
field significantly as regards risks of ionizing radiation. There have
also been dramatic technologic improvements in radiation monitoring.
The measures taken to minimize exposures to these early workforces
would clearly be deemed inadequate and inappropriate today. This was
decades previous to the Occupational Health and Safety Act and the
protections it brought to the nations workforces. Under an oath of
secrecy, there was little opportunity or incentive for complaints
despite a real sense of uncertainty regarding their risks.
I am concerned that in addition to having been placed at historical
risk in defense of our country, these workers are now at bureaucratic
risk of being frustrated and disadvantaged by the processes for
implementing EEOICPA. Both in the SEC process and in the dose
reconstruction process there is a lack of transparency and access to
expertise, which places petitioners and claimants at a tremendous
disadvantage.
SEC. In the SEC case petitioners are tasked with proving the
negative--that something cannot by definition, be proved. As a logical
or philosophic process this is quite difficult and workers and
petitioners need assurances that this process is workable and
transparent. Workers and their representatives often have to rely on a
cumbersome FOIA process and are unable to obtain the same data which is
used by NIOSH and it's contractors in the creation of Site Profiles and
Dose Reconstructions.
Dose Reconstructions. There is at least a perceived problem of this
being a litigious process and one can understand why workers feel
wronged by the unfair burdens of proof placed upon them. The Dose
Reconstructions developed by NIOSH provide the appearance of precision,
but this process is not exact nor at times defensible. As an example, a
worker at the Iowa Army Ammunition Plant was determined to have a 48%
probability of causation of a radiogenic cancer attributable to
exposures at the plant. Imagine this worker's disbelief, when amending
their filing based on a second and newly diagnosed radiogenic cancer,
on being told that the newly calculated probability of causation
dropped to 32%.
As background, allow me to describe the industrial processes,
exposures, historical health and safety procedures and reflections on
the SEC petition experiences at the two facilities I know best.
In the case of the Iowa Army Ammunition Plant, in Burlington, Iowa,
workers were exposed to ionizing radiation from enriched and depleted
uranium, plutonium, and tritium in the course of assembly and
disassembly of nuclear weapons from 1949 until 1975. Workers routinely
handled the radioactive components directly in their hands with only
cotton gloves and without lead aprons. They had little or no radiation
monitoring and little or no shielding from the radiation.
There are no reports documenting the internal doses of
radionuclides in this workforce at any time. Only limited external
dosimetry was provided to record the doses of external penetrating
radiation to which such workers were exposed.
A Special Exposure Cohort petition was submitted on behalf of these
workers on the basis of a near total lack of relevant exposure or
estimated dose data. The SEC petition process was long and frustrating
to the community. It took 3 1/2 years just for the rules for evaluating
SEC petitions to be developed. The argument was made by contracted
Health Physicists that despite the lack of individual exposure data,
doses could be reconstructed based upon classified information. All the
subsequent cancer claims, even those considered radiogenic, resulted in
denials initially. Statements were made by NIOSH contractors that this
was a low exposure workplace despite a lack of records and without the
benefit of worker interviews. This perceived a priori position seemed
to permeate the actions and statements made early on by NIOSH and their
contractors and may have resulted in resistance to take in to account
information from workers which contradicted the a priori assumptions
noted. NIOSH had stated that they could reconstruct the doses of
workers at IAAAP despite a near total lack of exposure data by dint of
theoretical models and data from workers at another worksite, Pantex,
handling different warheads, in a different era. Petitioners are
further disadvantaged by the technical nature and jargon of health
physics and typically must take at face value the more technical
calculations made by NIOSH. The Radiation Advisory Board is beset with
complicated decisions and would benefit from the addition of persons
recognized for strong environmental epidemiology skills. The functions
of the Radiation Advisory Board and of their technical contractor,
SC&A, must be guaranteed to be independent of any real or perceived
bias of involved federal agencies. SEC and claims decisions should not
be based on financial implications but fair and balanced on scientific
judgment.
There were significant weaknesses in NIOSH's assumptions that they
could reconstruct dose without worker exposure data. Examples include
NIOSH's use of ambient outdoor levels of radon gas for calculating
respired doses experience by underground workers in Iowa despite the
fact that Iowa has among the highest geologic sources and reported
indoor air concentrations of radon. NIOSH assumed that those badged had
the highest exposures. Production workers reported a less than
systematic radiation monitoring program and a pattern of inspectors and
engineers with less hands on responsibility for assembling weapons were
more likely than others to be monitored. It turns out that those
workers exposed to the greatest numbers of warheads at any time and for
whom the area monitoring reflected the highest exposure, (guards), were
never monitored.
In April 2005 the President's Advisory Board on Radiation and
Worker Health went on record agreeing with the workers' petition that
asserted that accurate, defensible and timely dose reconstructions
could not be performed.
The approval of the SEC has rekindled the faith and participation
in government.
At the Ames Laboratory, former workers processed African
pitchblende ores and radioactive thorium for use in the nuclear weapons
program from 1942-1955. The scientific, technical, and administrative
workers at the Ames Lab were involved in a heavy industry processing
tons of uranium and thorium. This process generated large quantities of
radioactive dust, and workers performed their duties without personal
protection, engineering controls or radiation monitoring to protect
them from radionuclide exposures and risks. Exposure data are available
for small subsets of the workforce from very limited points in time,
and without supporting documentation regarding both work and dosimetry
protocols and methods. Review of Ames Lab medical records from
individual workers involved in these processes has revealed no personal
dosimetry records. Workers were exposed to extremely high levels of
airborne uranium and thorium dusts, radon and thorium, even relative to
the standards in effect during the time. In fact, some workers were
excreting hundreds of micrograms of uranium per day in their urine.
My impression from the tone of the OMB memo that led to these
hearings is that there is a sense among some that the risk to these
workers has been over stated or that their employment resulted in
minimal risk. Unfortunately, because of a severe lack of exposure
records and the deaths of many potential claimants, it is not feasible
to conduct valid dose reconstructions for the Iowa Army Ammunition
Plant, IAAAP, facility or Ames Laboratory workers. At IAAP workers were
in intimate contact with strong sources of radiation, handling the
fissile central components of these weapons inches from their bodies
without lead aprons. Work histories of Ames workers include reports of
``blow-outs'' with dissemination of both uranium and thorium from
uncontrolled exothermic reactions occurring on a routine basis. These
exposures would not be tolerated by any means under today's
expectations of acceptable risk. Throughout our and other Former Worker
Programs scores of former workers lives have fortunately been saved as
a result of early detection of cancers and other conditions.
The SEC process has not fully addressed the risk of residual
radiation among the workers performing maintenance and repair of these
facilities. Recently an Ames Lab worker described to me his tasks
including tearing out all the equipment, ceilings and exhaust
ventilation in the building in which tons of thorium had been smelted
and refined. The Ames Laboratory health and safety staff assisted in
submitting an update to the Ames SEC petition to address this issue and
to ask NIOSH to extend the period of coverage of the Ames SEC and add
this subset of workers. The question of residual radiation risk is
relevant to many of the AEC/DOE sites involved in manufacture and
refining of radionuclides.
As regards the DOL claims process, despite the best of intentions
for claimant friendliness, it operates at times disturbingly like a
conventional property or health insurance claims process and
functionally places obstacles in the paths of claimants. The claims
process should also be as transparent as possible given any
confidentiality constraints.
I know of at least ten people whose claims were denied and whom
upon review of their cases and a letter of clarification to the
Director of the DOL Division of EEOICP resulted in these denials being
promptly rescinded. These denials resulted from such things as:
Proof of employment coming for a DOE site worker
coming from the parent company headquarters in New Jersey
instead of the plant site in Kansas City.
Evidence of disease coming from a 'CT' scan and being
denied because the term used was not 'CAT' scan.
Statements that specific diseases--Polycythemia Vera,
MAST cell lymphoma, myelodysplasia--are not covered under the
SEC list of presumptive cancers when in fact they are.
These workers are typically elderly and not well versed in
medical or legal terms and are unfortunately easily frustrated
and dissuaded from pursuing valid claims. Cases such as those
above suggest that there would be a benefit to a systematic
review of denied cases and a change in policy from placing the
burden of proof entirely on the claimants to a system in which
claimants are assisted in identifying and locating missing
information.
All the workers who were exposed to radiation, Beryllium
and related toxins as part of our Atomic weapons industry
deserve no less than a fair and open approach to the evaluation
of causality and compensation for work related disease.
Mr. Hostettler. Dr. Mauro.
TESTIMONY OF JOHN MAURO, PROJECT MANAGER, DOSE RECONSTRUCTION
CONSULTING SERVICES, ADVISORY BOARD ON RADIATION AND WORKER
HEALTH UNDER EEOICPA, SANFORD COHEN & ASSOCIATES
Mr. Mauro. Thank you very much. Good afternoon. My name is
John Mauro. I am an employee at Sanford Cohen & Associates
located in Vienna, Virginia.
For the past 3 years, SC&A has served as the technical
support contractor for the Advisory Board on radiation worker
health. I serve at the SC&A as project manager for that
contract.
I would like to thank the Subcommittee for inviting me here
today to discuss two topics. The first pertains to emerging
issues related to the review of SEC petitions. And the second
is to respond to allegations made during the March 1st, 2006
hearing regarding the possibility that SC&A may have a conflict
of interest with respect to the, some of the work we are
performing for the Advisory Board.
With respect to the first topic, I have prepared a written
statement that addresses four separate issues. However, for the
sake of expediency, it is convenient to combine these issues
into a single issue that has to do with finding and then
dealing with inadequacies in the radiation protection records
for workers at DOE and AWE facility.
When all is said and done, one of the most important
responsibilities we all have under the Act is to identify the
nature and extent of the deficiencies of the radiation
protection and other records at each facility and determine if
it is scientifically plausible to find a way to deal with these
deficiencies and reconstruct the doses to all workers in a
manner that is scientifically robust and claimant favorable. If
we cannot do this for any group of workers, we must recommend
an SEC petition.
To date, SC&A has reviewed numerous SEC petitions and NIOSH
evaluation reports of those petitions. The single most
important issue that continues to emerge is gaining a complete
understanding of the myriad operations that occurred at a
facility over time and understanding where the gaps exist in
the records that challenge our ability to reconstruct doses.
I don't think anyone realized that this program, when it
began, how difficult it was going to be to identify those gaps.
For example, at the Y-12 and Mallinckrodt facilities, we all
knew that uranium exposures were important and a highly
concerted effort was made to understanding the uranium
exposures that occurred at these facilities. However, during
our review of these petitions for these facilities, it became
apparent that there were many more radionuclides and activities
that took place at these facilities that needed to be
understood.
It is essential that we all recognize the complexity of
these facilities and make sure we do not overlook potentially
important sources of exposures and exposure scenarios,
especially during the early years.
We need to have complete and unfettered access to all DOE
historical records in order to achieve a level of confidence
that we have not missed anything important.
I believe the single most important issue that has emerged
to date is the recognition that it is very difficult to gain a
full understanding of the myriad activities that took place at
these facilities, and that NIOSH, the board and their
contractors, SC&A, must accept this reality and the challenges
that go with it.
Once we understand the extent and complexity of the
activities that took place at a given facility, and the
magnitude of the deficiencies and the gaps, we must develop
robust decision criteria for determining when we can develop
end develop methods that can fill the gaps in a scientifically
defensible and claimant favorable manner and when we cannot. I
do not believe we have yet reached the point where we all agree
on the process by which this best can be accomplished.
With respect to the second issue, I disagree with the
statement--the second issue being the conflict of interest
statements that were made at the--during the previous hearings.
I disagree with the statements made by Mr. Hallmark at the
March 2006 hearing that SC&A has a conflict of interest.
In my prepared statement, I explain why I believe Mr.
Hallmark's statements are not correct.
The bottom line is, and I am looking for one way to
convince the Subcommittee, is that when you review our record
of findings, just about 40 percent of our findings are that the
dose reconstruction deficiencies have either--have
underestimated and about 60 percent have found overestimated.
So I believe we have been very objective with respect to how we
approach the problem. And we do not have a conflict of
interest. I am not going to go into the details. They are all
in my record.
There are a couple of other matters I would like to
discuss, but I can see that my time is running out. And I would
like to thank you for the opportunity to speak to you.
Mr. Hostettler. Thank you, Dr. Mauro.
[The prepared statement of John Mauro follows:]
Prepared Statement of John Mauro
Mr. Hostettler. Mrs. Bates.
TESTIMONY OF KATHY BATES, SURVIVING CLAIMANT UNDER THE ENERGY
EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT
Ms. Bates. I would like to thank Chairman Hostettler and
Ranking Member Jackson Lee for inviting me to testify today. My
name is Kathy Bates, and I am representing my mother Mildred
Gore, my brothers James and Gregory Gore and myself with
respect to our EEOICPA claim under subtitle B for my father,
James Gore.
My father worked at Y-12 in Oak Ridge, Tennessee as a
production engineer in nuclear weapons fabrication from August
1988 to October 1994. He was diagnosed with basal cell
carcinoma in July 1992. He was diagnosed with ocular melanoma
in July 1997 and died in April 2001.
My testimony briefly summarizes our experience with the
claims process and the apparent lack of quality control in
NIOSH and DOL. My mother filed a survivor claim in January
2003. In July 2005, she received a draft dose reconstruction
from NIOSH and a recommended decision from DOL in November 2005
stating the claim was denied. Both the draft reconstruction and
DOL's recommended decision contained significant errors. The
first major errors that the draft dose reconstruction stated
that there were no records of monitoring for my father and no
information relating to his job title, job responsibilities or
locations where he worked.
My mother told NIOSH that he was a monitored employee but
this was given no credit. Nonetheless, he was assigned a dose
based on NIOSH's assumption that he was not regularly
monitored.
The second major error which I identified for NIOSH in
February 2006 is that NIOSH mistyped my father's Social
Security number when they requested records from DOE. As a
result DOE, found no records for my father. The third major
error is that the recommended decisions stated ``the
probability of causation for the primary colon cancer was
determined to be 25 percent.'' Ny father did not have colon
cancer nor was he diagnosed with colon cancer.
We filed an appeal with DOL in January 2006 based upon the
fact that NIOSH stated they had no records or information for
my father, and thus any dose estimate would have been in error.
I spoke at the Advisory Board public session in January 2006.
At that meeting, we were pleased to meet senior administrators
from DOL NIOSH and ORAU who gave us their personal assurances
that these problems would be corrected. This level of attention
certainly exceeded our expectations.
In June of 2006, we received a letter from DOL stating our
appeal was approved. I had filed a Freedom of Information Act
to DOE and did obtain records for my father, including his
radiation exposure records, which I e-mailed to NIOSH in August
2006. I also provided contact information on co-workers and
identified the building he worked in.
I obtained an e-mail acknowledgement of receipt and NIOSH
indicated they would put this information into the
administrative file. I thought the problem was on track and it
would be fixed.
On November 22nd 2006, we received the second draft dose
reconstruction from NIOSH. The report stated there were no
radiation exposure records for my father end quote, Mr. Gore's
work location is not known. NIOSH's dose reconstruction report
stated ``external electron radiation not considered in this
dose reconstruction because Mr. Gore did not work directly with
radioactive materials and any external doses would have been
attributable primarily to photons.''
Despite sending NIOSH's radiation exposure records, NIOSH
continued to contend that he did not work directly with
radioactive materials. The net result of course is that his
dose reconstruction is not correct again. To quote my mother,
``it is as if your father never existed.''
I do not know if NIOSH is going to immediately address
these problems and start their dose reconstruction for the
third time. Even if a dose reconstruction is completed for my
father using the records available, I can honestly say at this
point that we have little or no faith in the validity of the
results.
Is our claim experience an aberration or are there real and
systemic problems with the EEOICPA claims process that may have
resulted in the unwarranted denial of other claims? We hope
this Subcommittee will continue its oversight and enact
legislative reforms such as those in Representative Jackson
Lee's bill.
In this context, we have several recommendations. We urge
you to extend the responsibility for the DOL's office of the
ombudsman to include subtitle B and authorize the ombudsman to
act as an advocate on behalf of claimants seeking benefits. The
Special Exposure Cohort provision should continue to receive
the highest level of attention. For many claimants, the SEC
process may be the only hope of receiving a fair assessment. We
recommend that the role of the Advisory Board should be
extended to execution of the claims process itself. At present,
it does not appear that there is an external organization not
controlled by the agencies which is responsible for overall
administrative and claimant process audits.
I hope that my testimony today will be of value. We mourn
the loss of my father every day. We were blessed to have such
an extraordinary man as our father. We are proud of his service
to our country as a U.S. Navy veteran and of his service,
however small, in ensuring the safety and security of the
United States of America as a DOE employee for so many years.
On behalf of my family and myself, I thank you again for your
efforts to support key improvements in this program and
allowing me to testify here today. Thank you.
Mr. Hostettler. Thank you Mrs. Bates.
[The prepared statement of Kathy Bates follows:]
Prepared Statement of Kathy Bates
Mr. Hostettler. Mr. Miller.
TESTIMONY OF RICHARD MILLER, SENIOR POLICY ANALYST GOVERNMENT
ACCOUNTABILITY PROJECT
Mr. Miller. Before I begin my testimony, I would like to
just take an informal moment to offer a personal thank you to
the Chairman and to the Ranking Member for your efforts this
session of Congress to unmask the problems facing nuclear
workers seeking justice from a Government that had put them in
harm's way.
And Mr. Chairman, I realize that you will not be returning
next year, but your willingness to pursue two additional
oversight hearings in this lame-duck session of Congress is
particularly noteworthy and it serves an important role in
laying the groundwork, and I believe creating momentum for
legislative reforms next year. And we genuinely thank you both.
Today my testimony will assess the Department of Labor's
efforts to pursue initiatives that would reduce benefits to
sick nuclear workers, particularly new Special Exposure
Cohorts, two, to review the Administration's failure to
constitute the Advisory Board on radiation and worker health in
conformance with the law, and three, to highlight emerging
issues that are threatening the integrity of the audit process.
At the Subcommittee's March 1 hearing regarding the OMB
passback to DOL, a document which outlined five options for
limiting Special Exposure Cohort, the Department of Labor's
witness, Shelby Hallmark, stated, and I quote, ``cost
containment is not part of any strategy or involvement that the
Department of Labor has had in this process.'' Excerpts of e-
mails under preparation for the Office of Management and Budget
to use in the passback, which were made available to me by the
Subcommittee in preparing for this hearing state, ``the single
most effective way to prevent billions of dollars in spending
is by requiring HHS to clear its determinations to add
additional employees to the SEC, with the OMB, after an
opportunity for interested agencies, such as the Department of
Labor, to comment on the analysis and determination.''
The Department of Labor has actively led lobbying efforts
to reduce benefits paid out under NIOSH's Special Exposure
Cohort regulations, with respect to Special Exposure Cohort
bills covering facilities in Iowa, Missouri, New York and
Colorado, Mr. Hallmark says in an e-mail, ``we should do
everything possible to oppose these SEC amendments.'' and his
entire logic is budget driven without regard to the data
deficiencies.
The Department of Labor has also disparaged the Advisory
Board on Radiation and Worker Health. Excerpts of an e-mail
state, and I quote, ``the Advisory Board has totally failed to
take a balanced approach to examining NIOSH activities.'' And
an October 2005 memo under preparation for the Office of
Management and Budget the Department of Labor recommended that
the Advisory Board be ``refreshed.''
Excerpts from the e-mail state ``we believe replacing these
members could provide an opportunity to add board members
willing and able to advocate a scientifically valid approach in
carrying out NIOSH's responsibilities under EEOICPA.'' And
given DOL's stated agenda, this appears to be a simple case of
desiring to pack the courts in order to oppose SEC designations
all wrapped up in the pretext of scientific validity.
In sum, Mr. Hallmark's words in the March hearing, cost
containment is not part of any strategy or involvement that the
Department of Labor has had in its process are contradicted by
documents uncovered by this Subcommittee.
More damaging is the DOL's loss of credibility as an
impartial claims administrator. Austin Smythe, acting Deputy
Director of OMB, testified before the Subcommittee on July 20,
2006, ``we are not pursuing any of these items that were listed
in the passback.'' It was inappropriately leaked. It has now
been inappropriately characterized as Administration policy
which it is not. And yet, despite Mr. Smythe's testimony, the
OMB passback was put on the agenda for a joint NIOSH DOL
meeting held in January 2006, months after the OMB passback was
issued.
There were indications that Mr. Hallmark may have moved
forward with a sequel to the OMB passback. Judiciary Committee
notes from an early February 2006 e-mail communication from
Shelby Hallmark to Melissa Benton at the Office of Management
and Budget raises a red flag. An excerpt states ``I am
uncomfortable with even an unofficial sharing of my briefing
piece for today's meeting with my second floor people,'' which
is the Secretary of Labor. ``but if you promise not to spread
it and if you don't use the language in your document such that
NIOSH will know where the verbiage came from, I will share it,
but I am still smarting from your citation of your ideas in the
budget passback as having been suggested by the employment
standards Administration.'' and he asks, ``is that agreeable?''
Well, we would urge the Subcommittee to secure this
briefing paper and to ascertain its implementation status so we
know what he was referring to.
The Department of Labor's benefits containment agenda has
found its way into the day-to-day adjudication of claims. In
October of 2005, the Department of Labor began sending certain
compensable claims back to NIOSH, ``based on increasing DOL
management concern over a potential increase in compensable
claims for cancers perceived as normally or previously not
compensable.''
The Director of the Department of Labor's final
adjudication branch remanded cases back to DOL without ever
telling claimants their cases were being second-guessed by DOL.
In fact, one DOL e-mail says, when we send remand orders to
claimants, I don't want them to know they are part of a
``management plan.''
To the extent there are errors, such as work history or
incorrect cancer diagnoses that are within the ambit of the
Labor Department's regulations, then DOL clearly has a role
here. But an internal DOL e-mail by a health physicist concedes
that NIOSH dose reconstructions have not been overestimating
dose as Mr. Hallmark has contended. In fact, this DOL e-mail
says, ``now that I think about it, most of the dose
reconstructions for the special cancers we are reviewing that
resulted in a probability of over 50 percent are appropriately
performed by NIOSH and no rework is required.''
However, ``the need for maintaining secrecy seems to be a
concern.'' This DOE e-mail added ``I hope no one is mentioning
the fact that we took another look at these dose
reconstructions and said it was fine in the recommended or
final decisions.'' But the concern is that documents show that
the DOL's final adjudicative branch cooperated in advancing
this management plan to reduce the payment of claims and thus
they compromised their independence as an adjudicator.
There may be a need for legislative reforms to separate the
adjudicative branch from control of program officials and OMB.
I notice my time is close to wrapping up. I just have one
other point.
The OMB passback called for changing the membership of the
President's Advisory Board on Radiation and Worker Health,
which audits the scientific quality of dose reconstructions and
reviews SEC petitions.
Today the composition of the board as the Chairman noted is
not in compliance with EEOICPA, which requires a balance of
scientific, medical and worker perspectives. There are only two
of the four required worker slots, and only two of the four
required medical slots.
The Board also lacks the balance and diversity of
viewpoints that is called for under the Federal Advisory
Committee Act, thus compromising its independence. We recommend
that Congress enact legislation to shift the appointing
authority from the President to Congress.
And on November 3, 2006, NIOSH compensation program
director Larry Elliott--and this is just an emerging issue--
unilaterally suspended all access by the Advisory Board and its
audit contractor to the claimant database.
As of November 13th--2 days before this hearing--the
Advisory Board's access to the electronic database of records
was reinstated--although the constraints are unknown. However,
Mr. Elliott told the board that access of the claims filed by
Sanford Cohen & Associates or any contract entity must be
granted on a case-by-case basis with an established purpose as
authorized by the manager of the system of records, which is
Mr. Elliott. The board's audit contractor is now reduced to a
mother-may-I situation where the entity is audited. Mr.
Elliott's actions raise questions about the degree to which
there is a conflict of roles.
In November 2004, Mr. Elliott was removed as the designated
Federal official to the Advisory Board due to his conflict of
roles as manager of both the dose reconstruction program and
controlling the board.
The GAO's recent report to this Subcommittee warned NIOSH
to be alert for a conflict of roles in managing the program,
yet this conflict has resurfaced.
We recommend legislation to ensure that the Advisory Board
and the audit contractor have full and unfettered access to all
NIOSH files they deem necessary to carry out their
responsibilities under that Act consistent with the Privacy
Act. Thank you for your time.
Mr. Hostettler. Thank you, Mr. Miller.
[The prepared statement of Richard Miller follows:]
Prepared Statement of Richard D. Miller
Mr. Hostettler. At this time, the Subcommittee will turn to
questions.
Dr. Fuortes, what specific recommendations would you offer
to improve this program, either administratively or
legislatively?
Dr. Fuortes. Thank you.
Well, there are several issues. I think that one of the
issues that comes up is--has come up repeatedly is the
independence and the ability of the board and the auditor to do
their functions.
I think that that could be done legislatively or by a
variety of mechanisms. But I think that is certainly the
functions of the Board and the functions of the auditor need to
be recognized as very valuable functions to the claimants and
petitioners. They have no other access to that sort of
expertise. And I don't think that that request falls into the
line of requesting worker advocacy. I think it is access to
scientific acumen.
There are several issues, I guess, as regards the SEC
process and the SEC cancers, but one issue would be that the
SEC process should be facilitated I think and if it is NIOSH
that can help petitioners, if it is an agency such as the
Advisory Board, if it is another agency that is fine. But I
think that former workers and their families are disadvantaged.
They don't know what their exposures were. So somebody has to
assist them in educating them. This was the situation
historically. Maybe it is the Department of Energy's
responsibility. But that should be looked at.
Another issue, I raise just briefly is that the list of SEC
cancers itself might be reviewed. And I think that there is
probably--this is a point in time in which MCI or NIOSH or some
other agency could get involved in examining that list. I think
that there is--there are some deficiencies in the inclusion of
that list. You asked a very broad question and maybe this is
something that I am rambling on about.
Mr. Hostettler. Appreciate it. Thank you.
Dr. Mauro, a DOL memo prepared for OMB states the
following, ``the Advisory Board has totally failed to take a
balanced approach to examining by NIOSH activities. This
unwillingness to fulfill their statutory responsibility by
carefully examining issues such as whether so-called claimant
friendly devices increasingly adopted by NIOSH are
overestimating or overcompensating claimants has been magnified
by NIOSH's decision to provide technical support through a
contractor, Sanford Cohen & Associates, rather than through its
own staff. SC&A has relentlessly pursued an agenda that appears
to be designed to result in maximizing payments to claimants
regardless of scientific validity.''
Please explain how SC&A does its auditing work. For
example, does SC&A only examine underestimates, or does it also
assess overestimates of doses that would lead to inappropriate
compensation decisions?
Likewise, has SC&A actually identified such overestimates
and pointed this out to NIOSH or the Board?
Mr. Mauro. To answer the question, first, it must be
understood that the cases that we review are given to us by the
Advisory Board. They select the ones to make sure they get a
good cross section that represents as many different
facilities, different types of cancers, different time periods,
as possible. And we receive these cases from them.
Then we have a process of systematically checking each and
every dose reconstruction to give an individual for every year
we check how they calculate, how NIOSH has calculated that
dose.
And we determined whether or not they followed their own
procedures, whether or not the procedures they followed were
appropriate.
The bottom line is for each dose reconstruction that we
audit, we prepare a list of findings and identify deficiencies.
Now, it turns out we have completed 60 such audits. We have
249 findings out of the 60 audit reports.
Out of those, we found 102 had errors that resulted in
underestimates of the dose. And we have we had, we found 84
that resulted in an overestimate of the dose. And we found 63
that were errors but they really didn't affect the dose one way
or the other.
We are virtually--when we approach the process, we are
really blind to whether or not the outcome is going to be over
or under. We just look for errors in science, errors in the
ability for them to access the proper data and use the proper
procedures. And what falls out of that is the finding. And then
at the end, you can make a determination, well, does that
finding have the effect of resulting in an underestimate or the
overestimate in the dose?
We then sort all that out in our database, and I just sort
of summarize for you so the outcome of this is one that we do
both. We identify places where the science and the procedures
are flawed and where it needs to be fixed.
Mr. Hostettler. Thank you. Thank you, Dr. Mauro.
Ms. Jackson Lee.
Ms. Jackson Lee. Thank you very much, and thank you all for
your testimony, and please know that this Committee remaining
constituted as it is in terms of its jurisdiction will continue
to work to solve this problem, and I think this injustice to
many who have served so well.
Let me, Mrs. Bates, start with you, and thank you and thank
your mother and brothers and also thank your late father for
not only his service to the Department of Energy but to the
United States Navy.
And I, frankly, just want to get on the record the fact
that you relate to us a painstaking effort on your behalf, on
behalf of your family.
The good news is that there was a family member who had the
wherewithal to engage.
Many of those these individuals who are themselves victims
are elderly. Many of them may not have the wonderful support
system that you provide.
Just tell me how you felt going through all of this and
then ultimately seeing your Social Security number mistyped?
You know we always say to err is human. But putting the burden
on you to get all of these activities in order and then to see
a representation of a cavalier approach or attitude of a
misprinted Social Security number.
Ms. Bates. Well, I can tell you, it is very frustrating
from a personal standpoint. And I will honestly admit for the
first few years of the process I was kind of disengaged. My
mother had all the correspondence, filled out the forms and you
would occasionally have a follow-up call with a case worker.
When she got the original dose reduction, after a series of
other errors which are outlined in my statement, she called me
and said, I can't read this, what does it say? And that is when
I really sat down and looked at it. And I couldn't read it
either. And I had to sit down and I have spent hundreds of
hours of my time reading thousands of pages. I did know what
the Code of Federal Regulations was and so I knew where to go
on the Internet, look it up. And that is how I came to be able
to read 42 CFR part 82 for the dose reconstruction once
required.
I think my biggest frustration has been not knowing what to
do or where to do for help, because you don't get any help out
of calling the agency directly and saying I need help. The
common answer I would get--even when trying to get a status
was--it is in the process. That is not an answer. I felt like I
was being blown off.
And I think in your bill, the position of the ombudsman, I
might not be here today if that position existed and there was
an effective mechanism for people to go to and ask for help, at
all levels. And many of the claimants I am sure are elderly,
and many don't have the wherewithal to read these documents and
even know where to go. So I think that would be one of the most
effective things you could go do for the process.
And the claim process itself, not the dose reconstruction,
not the technical, the scientific part of it but you know as a
claimant, I give information, there is this magic black box and
out spits an answer. If it is right or wrong, I don't know. If
it is not right, I don't know how to get help. I don't know
even know who to ask.
Ms. Jackson Lee. Would you say then that elderly senior
citizens who don't have a support system can be completely
frustrated by this process?
Ms. Bates. Absolutely. My mother's comments to me when we
received the recommended decision which is sent to you after
the dose reconstruction was that if I did not have you to help
me, I would have simply thrown it in the garbage and been done
with it. Because what do you do? You are not even sure what it
says. You are really not even sure what it says. You do get to
the end and it says you will not be compensated if the claim is
denied. But reading between, you know, dear Mrs. Gore, and you
will not be compensated, the 6 or 7 pages is incomprehensible
for many people, I would imagine.
Ms. Jackson Lee. I do understand Government documents.
Might I also say that it is a challenge for individuals who
are living with the disease. Tragically, your father passed.
But I imagine if you had to entertain those elderly--those who
are trying to be compensated it must be a piquing frustration.
Ms. Bates. I can just imagine. I can just imagine. My
mother is an educated woman. She is not uneducated. But
knowing, having someone to ask questions of, is I think a
primary responsibility of the program. And if that is the role
of the ombudsman and that is the mechanism you can put in place
as a help system, I don't know how you would approach helping
people who don't have the wherewithal. How many people that are
elderly have Internet access and use it regularly and know
where to go and what to do?
So to the extent that these mechanisms are available you
have a very broad and probably varied audience with different
levels of capability to even understand or even use the office
or use the tool.
Ms. Jackson Lee. Dr. Mauro, I wonder why your, the
integrity of the auditor has now been challenged. And I wonder
would you describe your work as a free for all for any claimant
to claim that they are entitled, or do you do the appropriate
vetting and research that is necessary to do the dose
reconstruction?
Mr. Mauro. The process that we--our contract is very well
defined in how it works.
We are really part of a large process. The Advisory Board
has a mandate under the Act to independently provide oversight
of the dose reconstruction process.
We serve them in a technical capacity. They will deliver to
us the cases that they would like us to look at. The only cases
that we formally audit are the ones that are delivered to us by
the Advisory Board.
Then we follow procedures that have been developed and that
we are held accountable to that have been approved by the
Advisory Board. We have checklists. And everything we do, I
would have to say, is very deliberative. It is not a free for
all. It is--what we are--very often there are many, many people
who would like us to look at their cases. But we have--our
mandate is very well defined. Our role is to support the Board
and review those audit, those cases that are given to us by the
Board and report back to them.
Ms. Jackson Lee. What is your explanation that you are
being charged, having followed the rules by the book with
wanting to give everyone money or to approve every case? How do
you answer that? What is behind that?
Mr. Mauro. I don't have an answer. I don't have a ready
answer.
Ms. Jackson Lee. You feel you are following the rules?
Mr. Mauro. Our rules are laid out before us very clearly
and we are following them.
Ms. Jackson Lee. It may be the accusations are made by
individuals who want no one to be compensated or don't view
this as a realistic claim that so many people are suffering. It
might be the case.
Mr. Miller, I might throw this to you and thank you for the
leadership you have given on these issues.
My legislation, H.R. 5840, I think, answers Mrs. Bates's
questions and some of the points you have made. Might you share
how 5840 can get us started, at least in answering the question
I posed to Dr. Mauro? Why is his integrity being challenged? He
has argued that he is following the rules and he has nowhere to
go in terms of raising his defense because he is being charged
with a free for all in this process.
Mr. Miller. Well, first, if I might say, having been to, I
think, 41 of the Advisory Board meetings and watched the
deliberations, I would assume that if there were technical
acumen provided to claimants in order to assess whether, in
fact, their claims may have been, the dose may have been
underestimated or that an SEC might be warranted, and you
viewed your role over in the Department of Labor as second
guessing that, and that your job was to engage in cost
containment measures, and that appealing to the office of
management and budget's natural inclination to look at budget
issues and to curry favor accordingly, and then to pursue an
agenda where you reshape the program, not as Congress has
intended it, but as you wished Congress had done it, and to do
so in secrecy might explain why these nonpublic documents which
the Subcommittee has been so capably obtaining and now making
public for the first time, I think illustrate a larger
overarching agenda to undermine congressional intent.
And really, I think the Labor Department is undermining the
integrity of the program by attacking Sanford Cohen &
Associates with really--without an iota of substance or
credibility.
And I say that because the Labor Department has not once
come before the Advisory Board and said technically we disagree
with the finding of the audit contractor, or we disagree with
the conclusion on a special cohort that the Board voted out.
Instead they do this in secret with the Office of Management
and Budget seeking to undercut this process or working with the
White House to stack the Advisory Board.
This is the problem that we are facing is that there is a
back-door operation underway here that is undermining what goes
on in public. And I certainly hope that we can continue to
explore this further.
With respect to your legislation, I think it makes an
excellent start. It captured a number of the ideas that both
Congressmen Tom and Mark Udall presented before this
Subcommittee in their testimony, and I was pleased to see you
incorporate some of their recommendations as well, and I will
also note that they cosponsored your legislation, but this
legislation, I think the most important and central part is
that congressional intent has got to be reinstated in this
program. How do we go about doing that.
Well, I think the first step that your legislation takes is
let us have Congress make directed appointments. Let us take
this out of the Administration. There is too much temptation by
OMB and the green eye shades to undermine congressional intent
here. Let us have Congress on a bipartisan basis make directed
appointments consistent with the statutory criteria of medical,
scientific and worker perspectives.
So I think that is a first and important start, and we have
other suggestions as well.
Ms. Jackson Lee. Mr. Chairman, may I just make this point?
I am not sure if you are going on a second round. I have a
military briefing that I am being called to, and so if I depart
and the Chairman is having a second round, I am not sure.
Mr. Hostettler. I am having a second round, yes.
Ms. Jackson Lee. If I move, then you will know where I am
going. If I am still here, I am getting word that I can stay a
little bit longer, but Mr. Chairman, I just wanted to say that
with your leadership and the opportunity for another hearing to
finish this out when we return, please accept our commitment
that this is not going to be left undone. There are too many
patriots that we have to respond to, and I will--listen, I
might be here for the second round, and I thank the witnesses
very much.
Mr. Hostettler. I thank the gentlelady. We will now go to a
second round of questions.
Ms. Bates, you have spoken on this at some length, but more
directly do you feel the process today is claimant-favorable?
Ms. Bates. From the claimant perspective, no, because--and
I think we have addressed this--I felt the burden of proof was
on me, and when I say ``claimant-favorable,'' I know there is a
lot of language in 42 CFR 82 that addresses claimant-favorable
with respect to the dose reconstruction, but from the
claimant's perspective of how is the process going, not when I
have to literally prove to NIOSH that records do exist and that
this was his job and this is the building where he worked, that
cannot be perceived as claimant-favorable.
Mr. Hostettler. Thank you.
Mr. Miller, your testimony indicated that the NIOSH
program's staff had cut off access to claims data for the board
and the audit contractor. We understand that NIOSH has restored
board access to data. However, the audit contractor has not had
access to the claims database. How would you recommend that
this problem be resolved?
Mr. Miller. Well, Mr. Chairman, I certainly know that the
Director of NIOSH has now been made aware of this problem. John
Howard has received communications on this. Secondly, I think
that the situation that NIOSH has taken has told the audit
contractor--and they are here to confirm it for themselves--
that they must provide a rationale and a justification for the
records they want to look at when they do an audit, which to me
seems to be placing the audited entity in the position of
putting up obstacles, and it certainly leads to the
inefficiency of the process, and I would argue it deters the
depth and breadth with which the auditor can pursue his job or
her job.
My recommendation is that either something be done in the
appropriations bills this year or in some legislative vehicle
that provides full and unfettered access for the board and the
audit contractor based on what they deem is necessary, not what
NIOSH deems is necessary. That is point one and, two, that, you
know, obviously the usual constraints of the Privacy Act and
national security in terms of dealing with classification would
apply, but they need to be able to see and access those
documents without any interference whatsoever, and I think
Congress needs to provide crystal clear authority for that to
happen.
One would have thought that with a program where its
leadership boasts of its transparency that it would not engage
in this kind of activity, but it is going on, and I do not know
what is really driving it, but there is something motivating
this that is not entirely transparent, Mr. Chairman.
Mr. Hostettler. Thank you.
Dr. Mauro, in pursuing that, that notion of access and the
lack thereof, has lack of access been a challenge in meeting
deadlines in carrying out your work?
Mr. Mauro. Well, this new--the new set of ground rules were
only instituted about a week ago, and the nature of the ground
rules are that we have to inform or request access to specific
information, which we have done. Normally, we would have had
directly accessed that information and have already gotten the
information we need and we would have gotten the work done, but
right now we have requests in under this process, waiting for
the material to be released to us. So, in the respect of the
past week, I would say, yeah, there has been--because of the
process, there are records that we have not looked at yet that
we normally would have if this access was not restricted.
I would like to point out, however, on my way here today I
did receive a phone call from the contracting officer, Mr.
David Stout, who informed me that they are taking a real close
look at this and that there is a good possibility that SC&A
will be granted free and unfettered access to the records, but
they are discussing that right now and looking into that
further.
But to answer your question, the degree to which it will
prevent us from getting our job done, there is no doubt it is
an inconvenience. It will slow down the process. It already has
to a certain degree. As I mentioned, there are certain
documents we would have liked to have looked at today that we
really have not been able to look at.
Mr. Hostettler. So free and unfettered access would
probably be the optimal arrangement with regard to access for
your work?
Mr. Mauro. Yes.
Mr. Hostettler. And this is what it was for how long prior
to this recent evolution in the process?
Mr. Mauro. Well, when we first started the program about 3
years ago, we had some serious difficulties gaining access to
the records we needed, and it made it very, very difficult, and
it was a painful process to get to the point where we did have
access. So the machinery--they are these large computer
programs containing tons of information. Little by little we
were granted access to the point where we did have what I
considered to be very good access to the records, and that may
have gone on. I would say for the past 6 months things were in
pretty good shape, but now with this new policy we sort of took
a step back.
Mr. Hostettler. Thank you.
The Chair now recognizes the gentlelady from Texas for 5
minutes.
Ms. Jackson Lee. Let me just again conclude by indicating
that you have given us a great deal of insight on how we can
expand H.R. 5840 and also some insight, Mr. Chairman, possibly
on working with the Appropriations Committee to at least get,
maybe, points that we agree with particularly on the advisory
committee aspect.
Dr. Mauro, could you just give an example of where you have
identified significant omissions or holes in the data that were
generated by your access to the material? Do you have like one
example or have you discovered something? If you had not had
any access, you would not have been able to secure that
information?
Mr. Mauro. Yes. I guess the most important one is what is
happening right now. Right now we are in the middle of
reviewing the Rocky Flats SEC petition. There are some very
serious issues before us on whether or not the record is
complete with regard to the doses to workers. Are there
significant gaps? There are some questions of falsification of
records and destruction of records deliberately. All of these
are part of the record of the petition's concern.
Now, in order for us to investigate these matters, not only
us but also NIOSH, the only way to determine whether the
seriousness of these gaps and the statements made in the
petition is to go into the records. Without having access to
those records, these questions cannot be answered, and to place
certain constraints on, you know, the degree to which we can
access our protocol, it is going to make it difficult, and we
do not know how difficult it will be, and let us say we do have
to live with this new set of ground rules. It will make it
difficult for us to do the investigations that we would like to
be able to do, but of course if those are the ground rules,
that is what we will do.
So that is one very important example of where having
access to records is important. I hope that answers your
question.
Ms. Jackson Lee. And so, in essence, it is a question of
fairness. Do you have any access to determine what is right,
what is wrong, what is a fact, what is not a fact?
Mr. Mauro. In the end the records is what the whole program
is about.
Ms. Jackson Lee. Not your favoritism. You are not in the
business of favoritism, I take it?
Mr. Mauro. No, of course not.
Ms. Jackson Lee. You are in the business of independent
research and auditing----
Mr. Mauro. Yes.
Ms. Jackson Lee.--and I think, Mr. Chairman, that this is
one of the harshest discoveries that we have made, and it is
interesting that the call was made to reconsider this, but a
fact finder cannot be a true transparent fact finder without
having access to documents.
Dr. Fuortes, do you have any quick suggestion on this issue
that you raised that was dealing with any improvements to the
Special Exposure Cohort process?
Dr. Fuortes. Well, as I said, I think workers need some
assistance or sites need some assistance, and as I said, I
think this could be in several fashions, but that is one issue.
Ms. Jackson Lee. An ombudsman or someone advocating?
Dr. Fuortes. Well, most of what I have been working with
has in fact been claims-oriented, and the ombuds---I work a bit
with the ombudsperson's office, and I think that that--what you
have suggested of expanding that role would be fantastic. The
claimants are elderly. They do have a great deal of difficulty
in collecting and interpreting medical information. They have
the responsibility of collecting all of this information, and
if you can, imagine somebody without Kathy to help them. I
think that we can see that there is a real need for some
assistance in this process. I do not know if the resource
centers are supposed to do this work or not, but I believe that
the ombudsperson's office being expanded to fulfill that role
of claims assistance and, in particular, assistance with the
evaluation or the auditing of the denied claims by DOL would be
very, very helpful.
So this is not exactly answering your question of problems
with the SEC but how I view improvement of the overall program.
Ms. Jackson Lee. Let me just say that the two devils in the
details are the DOL acting as the handmaiden of the OMB as it
relates to doing their job and cost-cutting, and what we have
found is that cost-cutting seems to have carried the day as
opposed to fact finding. When you find the facts, you will
define the pool of applicants that are legitimate, and then you
begin to make the case for how they are compensated, but if you
start out with an OMB cost-cutting challenge, then you are
cutting the edges in terms of finding out the truth, and I hope
that that is not what my understanding of the Advisory Board
and this process was to be about.
So I, again, think this is my second expression of
appreciation. Thank you for the insight that has been given and
some of the additions, Ms. Bates--Mrs. Bates--that we would
like to add to the existing legislation, issues that you have
given us for consideration. Again, thank you.
Thank you, Mr. Chairman.
Mr. Hostettler. I am going to ask a couple more questions.
First of all, Dr. Fuortes, what is your view on the current
balance of the Advisory Board?
Dr. Fuortes. My impression is that even the term
``balance'' is confusing. To me, it is very confusing because,
from documents that were made available to me, it appears that
people view the balance on the Advisory Board being a balance
of the employer's perspective and worker advocacy.
I think the Advisory Board is tasked with making scientific
judgments, so worker's perspective is important in terms of
knowing the worker's language, knowing about the processes
involved in facilities, not worker advocacy, and so I am very
disturbed by that terminology in those documents. I think that
I would prefer people follow through with the concept of
difficulty in ascertaining risk and determining how to fulfill
the language and intent of the EEOICPA Act on the basis of
scientific judgments.
In that case, I would say that instead of balance the skill
sets reflected on the--which is what you are getting at--the
skill sets reflected on the Advisory Board would suggest to me
that they probably need a little bit more medical epidemiology/
radioepidemiology background. The one radioepidemiologist is, I
think, very, very overburdened with the current tasks, and I
would say that I would look at skill sets instead of balance
because, to me, the concept of ``balance'' really implies
advocacy roles and antagonism between two separate advocacy
roles.
Mr. Hostettler. With the notion of skill sets, how would
that be redundant with the task of the contractor itself, or
would it be?
Dr. Fuortes. Oh. Well, I do not know that the contractors
are medical epidemiologists per se. I would say that their
skill sets lie more in radiophysics dose ascertainment, and
medical epidemiology was--certainly, there is an overlap
between the fields, but I would say that they are separate
areas.
Mr. Hostettler. Okay. Thank you.
Mr. Miller, has it been your experience that the shoddy
processing of Ms. Bates' survivor claim is unique or is it
systemic?
Mr. Miller. The circumstance that Ms. Bates brings up
certainly brings to mind for me several other recent cases
where the mechanics of the claims processing is deficient. Let
me give you an example from the Nevada test site, for example.
The Nevada test site--they are--NIOSH concedes that in their
site profile documents that they cannot reconstruct dose for a
whole group of workers who were out at this nuclear weapons
test facility. When they did certain underground tests, the
tests did not stay contained. They blew out. They vented, so to
speak, euphemistically. Some of these ventings went on for 30
hours and traveled all the way to Utah. So, when we say
``venting,'' we mean a large amount of particulate debris that
was forced into the atmosphere over a protracted period of
time. Huge amounts of pressure built up underground. The
workers around it were not necessarily monitored or monitored
adequately, and NIOSH does not have a clear way to estimate
their dose, but what they put is--they say that workers will
self-identify if they have been in these events. They assume
that claimants will self-identify and survivors will self-
identify, that one of these ten out of--you know, over the
hundreds and hundreds and hundreds of tests that have been
conducted there that they will flag that and that NIOSH will
know it, and then, if they know that, they will set it aside.
Well, the fact is claimants are not even asked if they were
involved in these tests by NIOSH, so NIOSH just goes ahead
willy-nilly and is reconstructing doses while omitting these
events that they cannot reconstruct dose for. So you are
supposed to be setting these aside and either pending them or
perhaps putting them in another special cohort.
Instead, what is happening is due to the administrative
failures of NIOSH in its claimant interview process the failure
to obtain the information that these workers should not be
dose-reconstructed, because NIOSH already admits they lack the
data and the wherewithal to do it, and yet they are running it
through the process. How is a claimant, when they get this
gibberish back in their dose reconstruction report, ever going
to fathom that their case was so grossly mishandled? And I have
had the privilege of working with the Senator's office from
Nevada who has fed me a number of these cases, and I am
astounded at the degree of ineptitude in the basic bureaucratic
processing of the claims by NIOSH.
Mr. Hostettler. Thank you.
Those are all the questions I have.
The gentlelady from Texas.
Ms. Jackson Lee. I am prepared to yield, and I think that
we have made a very, very good record particularly by all of
the witnesses coming from different perspectives, and I would
appreciate, Mr. Chairman, if we could collaborate in this
period between now and the close of this session to see how--at
least the strengthening of the Advisory Board subtitle (B), but
the integrity of Dr. Mauro's process, I think, is key. He must
be unfettered, and he must be able to view documents with
integrity. There will be several elements that will help move
these cases along, and I thank you very much, and I yield back
my time.
Mr. Hostettler. I look forward to working with the
gentlelady from Texas.
Without objection, all Members will have 5 legislative days
to make additions to the record. The Chair will also notify the
witnesses that we will have a set of a few questions. I have
some questions for some of the witnesses that are here today
that I was not able to ask, and so I would request that the
witnesses would respond to those questions in a timely fashion,
and that time frame will be made known in correspondence that
we will make with you.
The business before the Subcommittee being completed today
without----
Ms. Jackson Lee. I will join you in written questions as
well. Thank you.
Mr. Hostettler. Without objection, the Subcommittee is
adjourned.
[Whereupon, at 3:30 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable John N. Hostettler, a
Representative in Congress from the State of Indiana, and Chairman,
Subcommittee on Immigration, Border Security, and Claims
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Ranking Member,
Subcommittee on Immigration, Border Security, and Claims
Memorandum from Morton Rosenberg, Specialist in American Public Law,
American Law Division, Congressional Research Service
Prepared Statement of Robert Alvarez, Senior Scholar,
Institute for Public Studies
Office of Management and Budget Memorandum
Prepared Statement of Paula Graham, Member, Advisory Board to the
Health Researchers of the University of Iowa, Department of Energy
Response to Post-Hearing Questions from Laurence Fuortes, M.D.,
Professor, Department of Occupational and Environmental Health,
University of Iowa
Response to Post-Hearing Questions from John Mauro, Project Manager,
Dose Reconstruction Consulting Services, Advisory Board on Radiation
and Worker Health Under EEOICPA, Sanford Cohen & Associates
Response to Post-Hearing Questions from Kathy Bates, Surviving Claimant
Under the Energy Employees Occupational Illness Compensation Program
Act
ATTACHMENT
Response to Post-Hearing Questions from Richard Miller, Senior Policy
Analyst Government Accountability Project
Prepared Statement of Sandra Wolff Baldridge
Significant documents and communications related to the Subcommittee's
oversight of the Energy Employees Occupational Illness Compensation
Program Act